ICA Supports Retention of Court Access for Registrants in IGO UDRPs

ICA has just filed its comment letter supporting all five recommendations contained in the GNSO Initial Report on the IGO-INGO Access to Curative Rights Protection Mechanisms Policy Development Process. ICA Counsel Philip Corwin is Co-Chair of the Working Group (WG) that prepared this Report, issued after two years of extensive research into the underlying legal and policy issues.

From the viewpoint of domain registrants, the most important recommendation is that, in the rare instance where a domain registrant targeted by an IGO believes that an adverse UDRP or URS decision is in error, the registrant will retain the right to seek de novo judicial review by a court of mutual jurisdiction. The WG did not find a sound basis for accepting the recommendation of the “IGO Small Group” that the accepted scope of jurisdictional immunity for International Intergovernmental Organizations required any appeal be heard by another arbitrator rather than a court.

Addressing this issue in its letter, ICA stated:

Creating additional rights protection schemes that apply to only an extremely small subset of Internet users is impractical and would only be justified if the mutual jurisdiction appeals clause of current DRPs would always offend the degree of judicial immunity that is generally recognized for IGOs. However, based upon the input of its legal expert, the WG properly concluded that there is no such universal absolute immunity for IGOs in domain-related disputes, and that the proper forum for adjudicating an IGO’s immunity claim is a national court.

This cautious approach is consistent with the principle that, while ICANN policies should recognize and respect existing law, ICANN has no authority to grant legal rights that go beyond contemporary law. A California non-profit corporation’s attempt to deprive domain registrants of their statutory right to judicial process might well be spurned by many national courts, and would also run afoul of many national laws prohibiting involuntary dispute arbitration that deny access to court.

Further, given the demonstrated lack of quality control, consistency, and predictability in UDRP determinations it would be fundamentally unfair to attempt to bar the owner of a valuable domain who believes that a UDRP or URS has been wrongly decided from seeking truly independent de novo judicial review. The fact that the IGO’s preferred alternative, “appeal” to another non-judicial DRP provider, might well result in a rehearing by WIPO – an UN-affiliated IGO – would inevitably raise questions about whether it was an impartial and balanced forum or one disposed to favor its IGO brethren. Likewise, as both the UDRP and URS are supplements to and not substitutes for litigation, ICANN policy should never seek to deny the citizens of any jurisdiction access to courts in order to adjudicate their statutory rights unless such a result is required by other clear and universally recognized preemptive legal principles.

In regard to what should happen when an IGO successfully asserts its immunity from the jurisdiction of such court, ICA favored adoption of Option 1 put out for comment by the WG, that “the decision rendered against the registrant in the predecessor UDRP or URS shall be vitiated”.

In explaining that preference, ICA’s letter states:

Our rationale in favor of this option is that the UDRP and URS are convenient, expedited, and lower cost supplements to available judicial process, not preemptive substitutes, and that ICANN has no authority to require a non-judicial appeal and thereby strip domain registrants of those legal rights they may possess under relevant national law. Further, our members’ overall experience with the UDRP is that panel decisions can be seriously flawed — and it is precisely in those instances where the registrant believes that panel error has occurred and the loss of a valuable or functionally important domain is imminent that availability of independent, de novo judicial review is most critically required. Given the cost of litigation, such registrant appeals will likely be rare and reserved only for the most egregious mistakes in judgment by UDRP or URS panelists.

Successful assertion of an immunity defense by an IGO in such an appeal would essentially deprive the registrant of the opportunity for independent judicial appeal. In that circumstance, the UDRP/URS would no longer be a supplement to relevant law but a preemptive substitute for it. Such a result would go far beyond ICANN’s authority, remit and mandate. Therefore, if the IGO succeeds in its immunity claim and thereby effectively strips the registrant of its only meaningful opportunity for appeal, the predecessor UDRP should be vitiated and the situation should return to the status quo ante.

While the WG did not adopt the “Small Group” proposal, its Initial Report nonetheless recommends necessary adjustments and enhancements of existing UDRP and URS practice that will enable IGOs and INGOs to more readily access these existing expedited and low-cost curative rights mechanisms to effectively respond to misuse of their names and acronyms in the domain name system (DNS). These include allowing an IGO to assert standing to file a case based upon either trademark rights or, in the alternative, demonstration that it has complied with the simple communication and notification to WIPO prerequisite for gaining the protections for its names and acronyms in national trademark law systems in accordance with Article 6ter of the Paris Convention. The Report also clarifies that an IGO may avoid any concession on the matter of jurisdictional immunity by electing to file a UDRP or URS through an assignee, agent or licensee.

The comment period on the Initial Report has been extended through March 30th at the request of ICANN’s Governmental Advisory Committee (GAC) so that its members may have the benefit of attending sessions on the WG Report as well as facilitated GNSO-GAC discussions on outstanding IGO issues during the upcoming ICANN 58 meeting in Copenhagen. The WG will evaluate all the comments and consider whether changes should be made to its recommendations prior to issuing a Final Report for consideration by the GNSO Council. Any recommendations endorsed by Council will be sent on to ICANN’s Board for approval and implementation; the GAC can render its own advice on the Final Report and the Board is bound to consider that advice if it is adopted by full GAC consensus.